More injunction woes

Hong Kong Court of Appeal ‘voices concerns over a lack of clarity and certainty’ about the government’s second attempt to get an injunction to ban and curb distribution – especially on YouTube – of protest anthem Glory to Hong Kong

Last year’s application at the Court of First Instance failed after Mr Justice Anthony Chan Kin-keung found the intended ban would run counter to established criminal justice procedures and would not achieve what the government wanted – to compel internet giant Google to censor the song.

In its appeal, the justice department has argued that the lower court failed to offer “the greatest weight and deference” to Chief Executive John Lee Ka-chiu, who pronounced the song’s circulation a threat to national security in a move that was binding on the judiciary.

…[Government counsel Benjamin Yu] urged the court to fulfil its “positive duty” under the Beijing-imposed national security law to prevent and suppress acts endangering national security by doing as the executive branch said.

But the bench remained unconvinced, as judges highlighted various parts of the draft order which they found to be ambiguous and had failed to meet the required legal standards.

High Court Chief Judge Jeremy Poon Shiu-chor pointed to the exemption clause and stressed the public could not be left to speculate what acts might be safe.

“Is it sufficient or adequate enough for the purpose of certainty and informing a reader as to what he should or should not do? Lawful activity or lawful act does not add anything further, because without an injunction you can do whatever you want,” he said.

The senior counsel conceded that his team had failed to come up with other reasonable excuses…

Some questions. Are courts supposed to show ‘greatest weight and deference’ toward the Chief Executive? Yu’s remark about the court’s ‘positive duty’ suggests that he thinks they should. The judges are not questioning whether a short piece of music can ‘endanger national security’ – but they are objecting to the vague and weak phrasing about exemptions. 

Also, will the new Article 23 NatSec Law – or other measures – enable the government in future to get its way more readily in the higher courts (following the recent CFA case on the supposed organizers of the August 18, 2019 demonstration)? Will ramped-up anti-sedition laws in the forthcoming bill make an injunction like this redundant?

And, assuming the government eventually succeeds in getting an injunction, what action does it expect Google to take, and what will the authorities do if Google does not comply? 

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4 Responses to More injunction woes

  1. Greatest Weight says:

    Please take the following with the upmost ‘greatest weight and deference’, but isn’t the purpose of the law’s phrasing meant to provide the ‘greatest ambiguity and deference’ to the wiles and needs of the party? This being the case, would it be considered illegal to hum the tune? What if you only sang one-third of the lyrics and definitely left out the chorus? What if you are walking by a radio and you overhear the song being played as part of a news story? Wouldn’t hearing the tune alone lead someone with ‘greatest weight and deference’ to lead a rebellion?

  2. MeKnowNothing says:

    I must say, the CIA certainly found the right button to push in order to cause General-Secretary He-Who-Has-Thought-of-Everything to do seemingly everything possible to bugger seemingly everything here.

    Pikachu, PK Tang, Broomhead… even the Director of Audit (see if you haven’t already) – seemingly EVERYONE now – is falling over each other to keep smashing that self-destruct button.

    Now consider the pandemic, which we all know started after the US Army’s basketball team came to play one of those so-called “friendly” matches in the Glorious Motherland. They set up the ball – like in volleyball – for someone to spike it (pun intended) into the opposing team’s side of the court – which the flapheads did by posting that letter from Toronto which we all know is how Omicron got over here. The Germans helped with that too, as BioNTech’s mRNA vaccine (that targets the spike protein of the COVID-causing virus – in case you missed the pun) would have been ripped off as the price-of-entry into the cliched tantalisingly huge market of now non-consumers as the house-of-cards property sector takes everything with it Titanic-style.

    The big picture – when you can finally see it for what it is – was an incredibly clever strategy to make sure that China would well & truly bugger itself – and very well timed, I must add.

    Bloody well done, Septics!

  3. Mary Melville says:

    Lack of Clarity is the motto of our adminstration. Take today’s headlines

    “Financial Secretary Paul Chan on Monday said Hong Kong will put itself in a position to seize the massive opportunities brought about by the world’s transition to environmental sustainability. He made the comment at the opening ceremony of the inaugural Hong Kong Green Week, where more than 5,000 participants are expected to join a series of events themed around green technology and finance.”

    While over on the desperado tourism front the same minister:

    “According to sources, the upcoming fiscal budget announcement on Wednesday, the 28th, will unveil an exciting update to the program, with a particular focus on monthly fireworks displays and drone performances over the Victoria Harbour, aiming to bolster tourism efforts and attract visitors to the city.”

    Fireworks cause extensive air pollution in a short amount of time, leaving metal particles, dangerous toxins, harmful chemicals, and smoke in the air for days.

    So little clarity re how tp achieve the goal that “Hong Kong is well positioned to become a global hub for green technology and finance”.

  4. Clucks Defiance says:

    Presumably Thomas dgx yhl – the anonymous composer of GTHK – has not registered his work with any copyright protection body such as the PRS, or the local Composers and Authors Society of Hong Kong (aptly known as CASH). Thus the performances of GTHK – which would have been registered by users and reported to licensing bodies -will not have been allocated any royalty payments by these societies in their annual distributions of royalties collected.

    If so, we should admire his moral stand on this. Given the exposure on broadcast media, the internet and at global sporting events in front of hundreds of thousands of spectators and millions of TV viewers, 5 years of royalty cheques would be a considerable sum- we’re talking at least a few million HK dollars.

    I have no doubt the NatSec goons know exactly who Thomas dgx yhl is. Perhaps he has already fled Hong Kong? I can only imagine the hellfire that would reign down upon him if he had made money from the composition. Perhaps this is why they haven’t hauled him in? They can’t prove that he made anything from it, and may even have difficulty proving that he is indeed the composer.

    I don’t think the government winning its appeal will be the last of this. Once they’ve got the song, they will go after the composer – and others involved in the lyrics and original video performances. I also wonder if CASH has been pressured by the thought police into revealing details of its membership and royalty earnings.

    What a fucked-up place HK is.

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